Gengai vs State Represented By Its
2021 Latest Caselaw 4283 Mad

                                                                                  Crl.A.No.605 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS


                                                DATED : 19.02.2021

                                                      CORAM

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                Crl.A.No.605 of 2019

                     Gengai                                                  ...Appellant
                                                        Versus

                     1.State represented by its
                     The Deputy Superintendent of Police,
                     PagandaiKootusalai Police Station,
                     Villupuram.
                     Crime No.136 of 2013.

                     2.Periyasami                                             ... Respondent
                     (Amended as per order dated 20.09.2019
                     in Crl.M.P.No.13592/19 in Crl.A.No.605 of 2019)

                     PRAYER: Criminal Appeal is filed under Section 374(2) Cr.P.C seeking to
                     set aside the judgment and sentence passed by the learned Sessions Judge,
                     Special Court for Exclusive Trial of cases under SC/ST Act, Villupuram in
                     Special Sessions Case No.207 of 2015 dated 20.08.2019 convicting the
                     appellant for an offence under section 3(1)(x) SC/ST Act 1989 the appellant
                     is sentenced to undergo 1 year R.I and to pay a fine of Rs.1,000/- in default
                     to undergo further period of 3 months S.I.



                     1/11


https://www.mhc.tn.gov.in/judis/
                                                                                      Crl.A.No.605 of 2019

                                        For Appellant     : Mr.M.Rajavelu

                                        For R1           : Mr.R.Suryaprakash
                                                           Government Advocate

                                                         JUDGMENT

This Criminal Appeal has been filed seeking to set aside the judgment

and sentence passed by the learned Sessions Judge, Special Court for

Exclusive Trial of cases under SC/ST Act, Villupuram in Special Sessions

Case No.207 of 2015 dated 20.08.2019 convicting the appellant (A-2) for an

offence under section 3(1)(x) SC/ST Act 1989 and the appellant is

sentenced to undergo 1 year R.I and to pay a fine of Rs.1,000/- in default to

undergo further period of 3 months S.I.

2.The respondent police registered a case against the appellant/A2

for the offence under section 294(b), 355, 506(ii) IPC r/w.section 3(1)(x) of

the Schedule Caste/Schedule Tribe Act in Crime No.136 of 2013. After

investigation, 1st respondent laid a charge sheet and the charge sheet was

taken on file in P.R.C.No.19 of 2014. Thereafter committed the case to the

Designated Court since the offence falls under section 3(1)(x) SC/ST Act.

The learned Designated Court taken the case on file in Spl.S.C.No.207 of

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

2015. After completing the formalities, Judge, Designated court, framed the

charge against the appellant and her husband/A1 for the offence under

sections 294(b), 355, 506(ii) IPC r/w.section 3(1)(x) of the Scheduled

Caste/Scheduled Tribe Act. During the trial, the husband of the appellant/

first accused died. Since the charge framed against the first accused were

abated, after trial, the trial Court found the appellant guilty for the offence

under section 3 (1)(x) SC/ST Act and sentenced to undergo 1 year R.I and

to pay a fine of Rs.1,000/- in default to undergo further period of 3 months

S.I. Challenging the said judgement of conviction and sentence, the second

accused/appellant has filed the present appeal.

3. The learned counsel for the appellant would submit that the

prosecution has not proved the case beyond all reasonable doubt. In the

complaint itself, the defacto complainant has not stated the name of the

persons those who have accompanied on the date of occurrence at the house

of the appellant. Initially the complaint given against three persons and after

investigation, one of the accused was deleted from the charge sheet since

there was no prima facie allegation against that accused. Therefore, the

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

complaint itself is false. He would further submit that there are material

contradictions between the prosecution witnesses and the eye witness has

not supported the case of the prosecution. During the cross examination,

except official witnesses, other prosecution witnesses turned hostile and the

prosecution failed to prove the case beyond reasonable doubt. The trial

Court failed to consider the aspect that none of the witnesses have

corroborated the evidence of defacto complainant and the judgement of the

trial Court is liable to be set aside and appeal is to be allowed.

4. The learned Government Advocate would submit that there was an

agreement between the defacto complainant and the appellant. Since the

appellant refused to execute the sale deed, the defacto complainant went and

approached the appellant along with her husband and with villagers. The

appellant has refused to execute the sale deed. The defacto complainant

insisted to execute the sale deed. At that time, the appellant abused the

defacto complainant with filthy language and also mentioned the caste name

of the complainant and also threatened with dire consequences. Therefore,

the defacto complainant filed the complaint before the police and the police

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

also investigated the matter and laid a charge sheet against the appellant and

her husband. During the trial, the husband of the appellant died. Eye

witnesses P.Ws.4, 5 and 7 have corroborated the evidence of P.W.1/defacto

complainant and also the prosecution has proved its case. Though the date

on which the witnesses were examined in chief, the defense counsel did not

cross examine the witnesses. Subsequently, the witnesses not supported the

case of the prosecution. During the chief examination, all the witnesses have

spoken about the alleged offence and also corroborated the evidence of the

victim. Therefore subsequent deposition cannot be given much importance.

Therefore, under these circumstances, the prosecution proved its case

beyond all reasonable doubt. The trial Court also appreciated the entire

evidence and convicted the accused.

5.Heard both sides and perused the records.

6.The case of the prosecution is that the defacto complainant had

entered into an oral sale agreement with one Pandurangan, who is husband

of this appellant and paid a sum of Rs.7,000/- as advance for buying 31 ½ of

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

cents of land of Kuppusamy at Rs.7,000/- per cent on 02.09.2013. It is also

averred in the petition that the defacto complainant should pay the balance

amount and get the sale deed executed on 16.09.2013. Therefore, on

16.09.2013 at about 08.30 a.m., the defacto complainant went to the house

of Pandurangan along with 4 important persons to pay the balance sale

consideration. At that time, one Marudu @ Govindaraj, Pandurangan and

this appellant refused to register the land and also refused to return the sale

advance amount of Rs.7,000/-to the defacto complainant and abused the

defacto complainant with filthy language and abused by using their caste

name.

7. Subsequently after framing the charges and during the trial, in

order to prove the case of the prosecution, on the side of the prosecution 14

witnesses were examined as P.W.1 to P.W.14 and 8 documents were marked

as Ex.P1 to Ex.P.8. No material object was exhibited. After completing the

examination of prosecution witnesses, incriminating circumstances culled

out from the evidence of the prosecution witnesses were put before the

appellant. The appellant denied it as false and pleaded not guilty.

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

8. Appellate Court is a fact finding Court and it has to reappreciate

the evidence and can give own reasons to form independent finding. In

order to re-appreciate the evidence, this court gone through the entire

materials.

9. P.W.1, in his evidence has clearly stated that there was an

agreement between him and the appellant. They went to the house of the

appellant and questioned the same. Since they prolonged to execute the sale

deed, they went along with middle men and questioned the same. At that

time, the appellant and her husband abused the defacto complainant and

others with filthy language and also threated them with dire consequences

and also they scolded the defacto complainant by mentioning the caste

name. P.W.4 and P.W.7 are the persons who accompanied the defacto

complainant at the time of occurrence. Thereafter the complainant came to

be registered.

10.According to P.W.4, when the defacto complainant went to the

appellant's house he also accompanied with the defacto complainant and

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

clearly stated that when he went to the house of the appellant and

questioned the appellant, they refused to execute the sale deed in favour of

the defacto complainant but they tried to sell the same to the third party.

Therefore, the defacto complainant along with others questioned the same.

At that time, there was a quarrel between the appellant and the defacto

complainant and he also noticed the same. Further P.W.5 also deposed that

he also accompanied the defacto complainant when the defacto complainant

went to the appellant's house. At that time, regarding the execution of the

sale deed there was a quarrel between the appellant and the defacto

complainant. At that time, the appellant and his wife abused the defacto

complainant with filthy language by mentioning the caste name of the

defacto complainant. P.W.7 also corroborated the same. Thus they

corroborated the evidence of P.W.1. Even though it is stated by the learned

counsel for the appellant that during the chief examination on the side of

prosecution of the case, they have supported the case of the prosecution, but

during the cross examination done after six months, the witnesses have not

subsequently supported the case of the prosecution. However, at the time of

chief examination, all the witnesses are stated to have accompanied the

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

defacto complainant on the date of the occurrence. When the defacto

complainant went to the appellant's house, they have categorically stated

that the appellant abused the defacto complainant with filthy language by

mentioning the caste name and all the witnesses supported the case of the

prosecution. Evidence of hostile witnesses need not be discarded in totality,

but, the portion of evidence in chief which supports the prosecution can be

taken for consideration. The learned Special Judge, has come to the

conclusion that in the public view, in the presence of other persons, the

appellant scolded the defacto complainant by mentioning the name of the

caste of the defacto complainant. This Court also finds that the appellant has

committed the offence under section 3(1)(x) SC/ST (POA) Act 1989.

Therefore, conviction recorded by the trial Court is perfectly in order and

there is no merit in the appeal. As far as sentence is concerned, the counsel

for the appellant would submit that the age of the appellant is 70 years and

husband also died and she is living with her daughter. Considering the

mitigating circumstances, this Court only modifying the sentence as six

months instead of one year, which will meets ends of justice.

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

11. With the above modification, this Criminal Appeal is dismissed.

The trial court is directed to take steps so as to immure him in prison to

serve out the remaining period of sentence.

19.02.2021 mpa

https://www.mhc.tn.gov.in/judis/ Crl.A.No.605 of 2019

P.VELMURUGAN,J.

mpa

To

1. The Deputy Superintendent of Police, PagandaiKootusalai Police Station, Villupuram.

2.The Public Prosecutor, High Court of Madras.

Crl.A.No.605 of 2019

19.02.2021

https://www.mhc.tn.gov.in/judis/